Labor & Employment Law Daily Wrap Up, PROCEDURE—1st Cir.: Former engineering director’s failure to address on appeal how EEOC charge encompassed transfer was fatal flaw, (Jun 16, 2025)

By Kathleen Kapusta, J.D.

Judges are not mind readers.

Affirming summary judgment against the race and national origin discrimination claims of a Baxter Healthcare engineering director who alleged he was transferred to another position when a new vice president ordered the removal of all senior management personnel of Puerto Rican descent and was terminated when his position was eliminated several months later, the First Circuit found he failed to show how his EEOC charge encompassed his transfer. Although, said the court, “one could read Appellants' contentions on appeal as implicitly suggesting” the charge encompassed the transfer, “we do not entertain arguments made by implication; rather, we demand that they be spelled out squarely and distinctly (Oliveras-Villafañe v. Baxter Healthcare SA, No. 23-1345 (1st Cir. Jun. 13, 2025)).

New VP. During his 19-year tenure with Baxter Healthcare, the employee worked his way up the ranks, becoming an engineering director at the company’s Jayuya, Puerto Rico, plant in 2010. In 2018, he alleged that a new vice president, a white woman, ordered the plant manager to replace all senior management personnel of Puerto Rican descent.

Terminated. As a result, the employee was transferred, in February 2018, to an engineering manager position that, he claimed, left him no worse off and was purportedly temporary. Several months later, however, he was told his position was going to be eliminated but he could retain two part-time jobs split between two plants or be terminated. He chose termination.

Lower court proceedings. He filed an EEOC charge in May 2019 alleging race and national origin discrimination, among other things, and ultimately sued in federal court. Granting summary judgment to Baxter Healthcare, the district court held that the EEOC charge did not encompass the February 2018 transfer and, in the alternative, that the charge was untimely relative to the transfer as the charge was filed 447 days after the transfer occurred.

Timeliness. On appeal, the First Circuit noted that the employee appeared to dispute only the district court's holding as to the timeliness of the charge. He argued that the February 2018 transfer was a temporary move that left him no worse off, and thus it did not become an adverse employment action until his termination, and alternatively, if the clock for filing the charge started in February 2018, the district court should have applied equitable tolling because he believed the February 2018 transfer was merely temporary.

Finding that it did not need to reach the merits of either theory, the appeals court explained that the employee did not address on appeal the district court's holding that the May 2019 EEOC charge did not encompass the February 2018 transfer and thus that the transfer claim was not exhausted before the agency. “That failure,” said the court, “constitutes waiver of any argument that the February 2018 transfer was adequately presented to the EEOC and leaves uncontested an independent ground for affirmance.”

Squarely spelled out. Acknowledging that the employee’s contentions on appeal could be read as implicitly suggesting that the May 2019 charge encompassed the February 2018 transfer, the court nonetheless refused to “entertain arguments made by implication,” demanding instead that “they be spelled out squarely and distinctly.” Because the employee made no effort to demonstrate how the May 2019 charge encompassed the February 2018 transfer by, for instance, analyzing its contents or citing legal authority, the court allowed the district court's alternative holding that the May 2019 EEOC charge did not encompass the February 2018 transfer to remain undisturbed.

The case is No. 23-1345.

Judge: Gelpí, G.

Attorneys: Juan R. Rodríguez (Rodríguez Lopez Law Offices) for Efrain Oliveras-Villafañe, Mirta Rosario-Montalvo, and Legal Society of Earning. Pedro J. Manzano-Yates (Silva-Cofresí, Manzano & Padró) for Baxter Healthcare SA, Baxter Sales and Distribution Corporation, and Baxter Healthcare Corporation.

Companies: Baxter Healthcare SA; Baxter Sales and Distribution Corp.; Baxter Healthcare Corp.

Cases: Procedure Discrimination RaceDiscrimination NationalOrigin MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews